Gurmukh Singh and Another vs The Gram Panchayat and Others

R.L. Anand, J.—Sarvshri Gurmukh Singh, Gian Singh and Santokh Singh, the present petitioners have filed the present writ petition under Articles 226/227 of the Constitution of India praying for the issuance of a writ of certiorari/mandamus and they have prayed for the quashment of Annexures P.3 and P.4 by which the petitioners have been ordered to be evicted from the land in question.

The case set up by the petitioners is that they are in continuous possession of the land measuring 24 kanals forming part of Khasra No. 40-Min situated in village Ghaimi Badeshan, Tehsil and District Amritsar since 1968 as pattedars of the Punjab Wakf Board, respondent No. 2. The land is ''Abadi deh'' and not a shamilat deh. Respondent No. 1 i.e. the Gram Panchayat had tried to interfere with the rights of the petitioners. Resultantly, respondent No. 4 Rur Singh filed a civil suit in the Court of Sub Judge Ist Class, Amritsar on 24.12.1970 against respondent No. 2 (Punjab Wakf Board) and others for declaration to the effect that khasra No. 40 as entered in jamabandi as a common land of village and is meant for their use. It was further claimed in the said suit that defendants have nothing to do with the suit land. That suit was dismissed by the trial Court on 31.8.1973. While disposing of the suit as to whether the land in question was the common land of abadi deh or not, the Civil Court categorically held that plaintiff Rur Singh i.e. respondent No. 4 had not been able to prove that the land in question was the common land of village abadi deh. Rur Singh impleaded Jagat Singh as defendant No. 2 in the said suit. Jagat Singh is the father of Gian Singh petitioner No. 2 in the present writ petition. Inspite of the dismissal of the suit which became final, the Gram panchayat of village Bhaini Badeshan wanted to interfere into the peaceful and lawful possession of the petitioners as a result of which the petitioners filed a suit on 2.3.1976 in the Court of Sub Judge, Amritsar for declaration that they are in possession of the disputed land and that the Gram panchayat has no right, title or interest in the said land. This suit was decreed on 22.9.1978 wherein it was held that the land in question belonged to. Punjab Wakf Board and that the petitioners are its tenant. This judgment has not been challenged either by the Gram Panchayat or by the wakf Board and it has become final. In spite of the categorical findings of the civil Court which considered all oral and documentary evidence, respondent No. 1 Gram Panchayat again started eviction proceedings u/s 7 of the Punjab Village Common Lands (Regulation) Act against the petitioners before the Collector who passed ejectment order of the petitioner on 1.7.1980. In the said proceedings respondent No. 1 Gram Panchayat made the basis of its claim by stating that the land in question formed part of abadi deh. The claim of the Gram Panchayat was resisted by the petitioner on the plea that they are pattedars under respondent No. 2 and had been paying rent regularly. Copies of the judgments of the Civil Court were also placed on record but in spite of the fact, the learned Collector passed the eviction order on 1.7.1980. Thereafter, the petitioner filed an appeal before the Commissioner who dismissed the same vide orders dated 11.2.1982. The petitioners have given challenge to the orders of Collector as well as the Commissioner (Annexures P.3 and P.4) on the ground that both the authorities did not take into consideration the decrees of the civil Courts which were competent to decide the question of title with regard to the land in possession of the petitioners, portion of which land does not fall within the definition of shamlat deh. It was incumbent on the part of the Collector as well as the Commissioner to give proper respect to the judgment of the civil Court and as such orders Annexures P.3 and P.4 are liable to be quashed which are based on mere surmises and conjectures.

The writ petition has been contested by respondent No. 1 Gram Panchayat which has alleged that the land in question is abadi deh of village which was always used for playing Football and Kabaddi etc, and was being used for common purposes. The petitioners forcibly and illegally occupied this land in 1968 in connivance with the revenue patwari and Punjab Wakf Board. According to respondent No. 1 the land in question is a shamlat land because it has been used by the village community for the common purposes. However, it was admitted by respondent No. 1 that the petitioners filed suit which was decreed as the then sarpanch of Gram Panchayat was in league with the petitioners.

Respondent No. 1 took proper steps in order to evict the petitioners as they were occupying the gram panchayat land in an illegal manner. Justifying the orders of the Collector as well as the Commissioner it was prayed by the Gram Panchayat that the writ petition be dismissed.

I have heard Shri Viney Mittal, Advocate, on behalf of the petitioner and Shri G.S. Nagra, Advocate, for respondents and with their assistance have gone through the record of this case.

The land in question forms part of khasra No-40 though the area involved is 24 kanals only. Khasra No. 40 has a big area. The case set up by the petitioners in the main writ petition is that they were the pattedars under respondent No. 2 Punjab Wakf Board; whereas the stand advanced by respondent. No. 1 gram panchayat is that the site in dispute is being used for the benefit of village community as a play ground and is situated within the abadi deh. In these circumstances, it was incumbent upon the gram panchayat to prove u/s 7 of the Punjab Village Common Lands (Regulation) Act (hereinafter called the Act) that the site in dispute which formed part of khasra No. 40 was being used for common purposes and for the benefit of village community. In this regard, I would like to make a mention of the judgment Annexure P.1 dated 31.8.1973. Shri Rur Singh and one Surjan Singh filed a suit for declaration to the effect that khasra No. 40 as entered in the jamabandi is the common land of village Bhaini Badeshan Tehsil and District Amritsar and is meant for the use of plaintiffs and other village proprietory body and that defendant No. 1 (Punjab Wakf Board) had nothing to do with it. Relief was claimed by Rur Singh and Surjan Singh not only against the Punjab Wakf Board but also against other several persons of the village on the allegations that they had no right to interfere with the possessory rights of the plaintiffs and other members of the village and that they were interfering with the possessory rights of the plaintiffs. Two important issues were framed in that suit as to whether plaintiffs were in possession of the suit property and whether the land in suit was the common land of the village abadi. While disposing of these issues it was held by the Civil Court in a contested judgment Annexure P.1 that the plaintiffs had failed to prove their possession and also it was held that they failed to prove that the land in question was the common land of the village abadi deh. This judgment which was delivered on 31.8.1973 was supposed to be respected by the Collector as well as by the Commissioner irrespective of the fact that the Gram Panchayat was not a party. The things do not rest here. The present petitioners Gurmukh Singh and others filed a civil suit on 2.3.1976 against the Gram Panchayat, respondent No. 1 for declaration that they are in possession of the land in dispute as tenants under the Punjab Wakf Board on payment of Rs. 270/- as rent and that the defendant had no right, title or interest in the said land. Injunction was also claimed by the plaintiffs (present petitioners) against the defendants praying that defendants be restrained from evicting the petitioners. Respondent No. 1 Gram panchayat never agitated in this suit that the civil court had no jurisdiction to entertain such type of suit or that it was barred u/s 13 of the said Act. It was categorically held in this suit that the land in dispute was not a shamlat deh rather it was abadi deh. Finding was also given against the gram panchayat that the plaintiffs were the tenants of the Punjab Wakf Board. The suit was decreed and this, judgment became final. In spite of the judgment Annexure P.1 and P.2 both the learned Collector as well as the Commissioner conveniently by-passed while passing the impugned orders Annexure P.3 and P.4. The learned Commissioner erroneously took the view that the land occupied by the petitioners was used for play ground. He categorically admitted that though the land was within the abadi deh yet it was covered in Clause 4 of Section 2(g) of Punjab Village Common Land (Regulation) Act and as such it was a shamlat land. There was no basis for the learned commissioner to hold like this in view of the judgment Annexure P.1 and P.2. Similarly the findings of the learned Collector Annexure P.3 were faulty. Rather this authority did not discuss any evidence and straightaway jumped to the conclusion that the land in dispute was shamilat and falls under the category defined u/s 2(g)(iv) of the Act. In order to bring its case under this clause it was incumbent on the part of the gram panchayat to further prove that the land was being used or reserved for the benefit of the village community including play ground, school, drinking wells or ponds. If this aspect of the case has not been proved at all and unnecessary finding has been given by the Collector as well as by the Commissioner, this Court can definitely interfere in-such findings which are patently illegal and are not borne out from the record.

Here I would like to refer to the orders of the motion Bench who decided to dispose of this writ with civil writ Petition No. 18744 of 1994 in which the similar point was under consideration. In the said writ and in order to adjudicate the nature of the land being used, the Hon''ble Judges appointed local Commissioner who inspected the spot including khasra No-40 of which the area of present writ is a part of it and it was found by the learned local commissioner who inspected the spot in the presence of the parties that there was not an iota of evidence to establish that the land forming part of khasra No. 40 was ever used as a play ground or any part of it was being used as a pond. That report dated 20.1.1995 of Shri R.S. Rangpoori, Advocate, becomes important and bears relevancy so as to adjudicate the controversy involved in the present writ petition. As I have just said that onus was upon the gram panchayat to establish that the site in dispute was reserved for the benefit of village community or was being used for play ground or pond etc. and that it had failed to discharge the onus, therefore, it could not be held to be a shamilat deh. Rather it remained abadi deh which is not part of the shamilat deh.

Faced with this difficulty, the learned counsel for respondent No. 1 had drawn my attention to Gram Panchayat Village, Bathoi Kalan, Patiala Vs. Jagar Ram and others, and submitted that the judgment Annexure P.2 was a decree, passed after the amendment of the Act by Punjab Act No. 19 of 1996. Therefore, it was rightly rejected by the learned Commissioner as well as by the learned Collector. He submitted that the judgment Annexure P.1 is not inter-parties. Therefore, the petitioners cannot take advantage of that judgment. It is true that in Annexure P.1 Gram Panchayat was not a party and that Annexure P.2 was passed after 1976 yet the probative value of these contested judgments cannot be taken away. In both the judgments it was held that the site in dispute forming part of khasra No. 40 is in fact an abadi deh which is excluded from the of shamilat deh. It was not proved that the site in dispute was being used for the benefit of village community. There was a categorically finding in Annexure P.2 that the present petitioners were the pattedars under the Punjab Wakf Board.

The Gram Panchayat, moreover, did not a raise any objection u/s 13 of the Act that such a suit was not maintainable or that the jurisdiction of the Civil Court was barred. Even otherwise, it is established that the land in question was not being used for common purpose and in these circumstances the orders of the learned Collector as well as of the learned Commissioner were passed on surmises and conjectures. In the light of the above discussion, the present writ petition is hereby allowed. The orders Annexures P.3 P.4 are-hereby quashed and respondent No. 1 is directed not to interfere in the possession of the petitioners. It is further directed to respondent No. 1 not to execute the orders of the learned Collector/Commissioner Annexure P.3 and P.4. There will be no order as to costs.